Yinghai Xia v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION MAR 02 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

YINGHAI XIA, No. 08-73739

Petitioner, Agency No. A079-544-287

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 21, 2012 **

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

Yinghai Xia, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ order dismissing his appeal from an immigration judge’s

decision denying his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). Our jurisdiction is

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
governed by 8 U.S.C. § 1252. We review de novo questions of law and for

substantial evidence factual findings. Husyev v. Mukasey, 528 F.3d 1172, 1177

(9th Cir. 2008). We deny the petition for review.

Substantial evidence supports the agency’s adverse credibility finding based

on the inconsistency between Xia’s written statement and his testimony regarding

whether his mother was beaten when they were arrested. See Pal v. INS, 204 F.3d

935, 939-40 (9th Cir. 2000) (inconsistencies between testimony and application

regarding injuries petitioner received during assaults went to heart of claim); Wang

v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003) (court is bound to accept adverse

credibility finding as long as one identified ground is supported and goes to heart

of claim). Xia’s contention that he was not given a reasonable opportunity to

explain the inconsistency is belied by the record. Accordingly, in the absence of

credible testimony, we deny Xia’s asylum and withholding of removal claims. See

Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Further, Xia’s CAT claim fails because it is based on the same statements

the agency found not credible, and the record does not otherwise compel a finding

it is more likely than not he would be tortured by or with the acquiescence of the

government if returned to China. See id. at 1156-57.

PETITION FOR REVIEW DENIED.

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